Wigan MBC v VF [[2009] UKUT 28 (AAC)]

Note: the following summary has been generated by AI. It is a Beta feature. You should cross validate it against the wording of the judgment.

Case Overview

1. This Upper Tribunal (Administrative Appeals Chamber) case, CH/1615/2008, involved an appeal by Wigan Council against a decision by an appeal tribunal.

2. The central issue is whether a weekly charge of £58.19, designated for a “sleep in/support room” in a tenancy agreement for a claimant with learning disabilities, was eligible for housing benefit. The claimant required 24-hour care, support, or supervision, necessitating an overnight carer.

Key Parties

1. Appellant: Wigan Council (“the Council”)
2. Claimant/Respondent: A single woman (aged ~29) with learning disabilities, represented by her solicitor, Mr. Simon Ennals.
3. Landlord: Partners Foundation Ltd (“PFL”), a not-for-profit organisation specialising in accommodation for people with learning disabilities.
4. Secretary of State: Joined as a party to the appeal.

Core Factual Background

3. The claimant suffered from learning disabilities requiring 24-hour care, support, or supervision, including an overnight presence in her accommodation.

4. On June 24, 2005, the claimant was granted a tenancy of a 2-bedroom house in Wigan by PFL.

5. The tenancy agreement was a “standard form agreement designed for shared accommodation” (Para. 18), despite the claimant being the sole tenant and occupant.

6. Clause 1b of the agreement stated the tenant had “sole use of own room and shared use of the communal areas,” defining communal areas as lounge, kitchens, dining, halls, passages, bathrooms, and WC. Crucially, it did not explicitly grant the claimant rights to the second bedroom.

7. Clause 2a detailed the weekly charge:

1. Rent: £61.74
2. Property Services: £38.31
3. Support Charges: £73.28 (This sum included £15.09 for “rental liability – claiming benefits” and £58.19 for “provision of sleep in/support room”).
4. Total Weekly: £173.33

8. The intention behind the £58.19 charge was for the second bedroom to be used by persons providing overnight care, supervision, and support (Para. 8).

9. The bulk of the actual care services were not provided by PFL, the landlord, but by others (Para. 11).

10. The accommodation was treated as “exempt accommodation” under Housing Benefit (General) Amendment Regulations 1995 (Reg. 10(6)), meaning it was exempt from restrictions determined by a rent officer (Para. 10, 12).

The Council’s Decision and Argument

11. Wigan Council decided on February 19, 2006, that only the “Rent” (£61.74) and “Property Services” (£38.31) sums were eligible for housing benefit.

12. The £58.19 for the “sleep in/support room” was deemed ineligible for housing benefit (Para. 9, 15).

13. The Council contended that this £58.19 element was “a charge for care and support” rather than an “accommodation charge” (Para. 34). They argued “the provision of a room for a carer to sleep in is just as much a part of the care package as the services that the carer provides” (Para. 35).

The Claimant’s Argument

14. The claimant’s representative put forward two main arguments to the Tribunal:

15. Primary Argument: The charge was “in reality rent” and the tenancy agreement was “inappropriate” (Para. 18). The claimant was always the “only tenant and occupant of the house” with “exclusive possession of the whole property” (Para. 19).

16. Carers entered as the claimant’s direct employees with her permission.

17. Evidence from PFL’s tenant liaison officer confirmed the original agreement was “misleading” and the claimant’s tenancy “was, and had always been, of the whole house, and was not limited to only part of the property” (Para. 20-21).

18. The £58.19 charge was an “artificial separation” of a necessary accommodation charge, calculated based on the proportional square footage of the room (Para. 21).

19. The second room was “necessary accommodation to enable [the Claimant] to live independently” due to her need for 24-hour supervision (Para. 21).

20. Alternative Argument (if a service charge): It did not fall into any ineligible categories under Schedule 1 to the 1987 Regulations (Para. 19).

The Tribunal’s Decision (First Instance)

21. The Tribunal accepted the claimant’s primary contention.

22. It held that the £58.19 charge was “in reality rent” (Para. 17, 21).

23. They concluded the accommodation was for the claimant’s “sole occupancy” and the extra room was “necessary accommodation to enable [the Claimant] to live independently” (Para. 21).

24. They found the separation of the charge “artificial” and believed the tenancy agreement, being a standard form for shared accommodation, did not reflect the reality of the arrangement for a sole tenant (Para. 21).

Upper Tribunal’s Analysis and Conclusion (Judge Charles Turnbull)

25. Judge Turnbull dismissed the Council’s appeal, agreeing with the Tribunal’s outcome, primarily on the basis that the tenancy agreement did not accurately reflect the parties’ intention that the claimant had a tenancy of the whole house.

Key Legal Principles Applied

26. Regulation 10(1) of the Housing Benefit (General) Regulations 1987: Specifies payments eligible for housing benefit, including “payments of, or by way of, rent” (10(1)(a)) and “payments of, or by way of, service charges payment of which is a condition on which the right to occupy the dwelling depends” (10(1)(e)).

27. Regulation 10(7) and Schedule 1: Defines “service charges” and lists “ineligible service charges.”

28. “service charges” includes “periodical payments for services, whether or not under the same agreement… or whether or not such a charge is specified as separate from or separately identified within other payments” (Para. 13).

29. Ineligible service charges include those for “day-to-day living expenses,” “nursing care or personal care” (1(e)), and “general counselling or other support services” (1(f)), as well as “any services not specified… which are not connected with the provision of adequate accommodation” (1(g)).

30. Distinction between “Rent” and “Service Charge”: “Rent” is consideration for the right to occupy the property (Para. 26).

31. “Service charge” is payment for services, facilities, or rights provided by the landlord (Para. 26).

32. Nomenclature is not Conclusive: The way parties describe a payment in a tenancy agreement is not determinative of whether it is “rent” or a “service charge” for housing benefit purposes (Para. 24).

33. “Dwelling which he occupies as his home”: Housing benefit is payable for payments “in respect of the dwelling which he occupies as his home” (Reg. 10(1), Para. 23).

34. Rectification of Agreement (Implied): The Tribunal was entitled to find that the precise form of the tenancy agreement “did not represent the parties’ intentions,” allowing it to be treated as if it were a letting of the whole house (Para. 31). Evidence that rectification could be obtained if sought is sufficient.

Upper Tribunal’s Reasoning

35. Primary Finding – Agreement Misrepresented Intent: Judge Turnbull found that the Tribunal was “entitled to make that finding, on the evidence before it,” that the tenancy agreement did not accurately represent the parties’ intention that the claimant had a tenancy of the whole house (Para. 31).

36. The landlord’s own tenant liaison officer’s statement confirmed the agreement was “misleading” and the tenancy “had always been, of the whole house” (Para. 20, 31).

37. Given this, the Tribunal was “right to conclude that the Claimant’s entitlement to housing benefit was required to be decided on the footing that the extra room had been comprised in the tenancy, and that the payment in respect of it was therefore properly to be regarded, for the purposes of regulation 10, as rent” (Para. 31).

38. If the entire house had simply been let to the claimant with the second bedroom included in the rent, “it would have been clear that the entirety of that sum was ‘rent’ and was eligible for housing benefit” (Para. 25). The actual drafting did not align with this policy.

39. Alternative Finding – If a Service Charge, it’s Eligible: Although the primary finding resolved the appeal, Judge Turnbull also considered the alternative argument (Para. 32):

40. The £58.19 charge was not for “nursing care or personal care” (1(e)) or “general counselling or other support services” (1(f)) because “those services are not provided by the landlord. The carer is employed and paid for by others” (Para. 32). The charge is “in respect of the provision of a room” (Para. 33).

41. It also did not fall under the general ineligible category 1(g) (services “not connected with the provision of adequate accommodation”). Judge Turnbull found that “it is reasonably clear that it is connected with the provision of adequate accommodation.” He cited Commissioner Mesher (CIS/1459/1995), stating that “the question of connection with the provision of adequate accommodation under paragraph 1(g) should not be confined to the character of the accommodation, but should take account of the personal needs of the residents” (Para. 33).

42. “Accommodation with only one bedroom would have been unsuitable for the Claimant’s purposes” due to her need for sleep-in support (Para. 33).

43. The policy embedded in the regulations, while generally excluding the cost of care, “does not seem to me that it covers, in the case where sleep-in support is required, the cost of additional accommodation necessary to provide that support” (Para. 34).

Most Important Ideas/Facts

44. Substance Over Form: The designation of a payment in a tenancy agreement (e.g., “rent” vs. “support charge”) is not conclusive for housing benefit purposes; the underlying reality and parties’ true intention govern.

45. Accommodation Needs for Care: Where a person with disabilities requires overnight care, the provision of a separate room for the carer can be considered a necessary part of “adequate accommodation” for the claimant, even if it is not directly occupied by the claimant themselves.

46. Distinction Between Accommodation Costs and Care Costs: The cost of the room for a carer is distinct from the cost of the care services provided by that carer, especially if the landlord does not provide the care. Housing benefit policy aims to cover accommodation costs, not care services.

47. “Exempt Accommodation” Significance: For “exempt accommodation,” housing benefit determinations are not subject to rent officer restrictions and instead (at the relevant time) relied on the 1987 Regulations as of 1996, which focused on the “rent” vs. “service charge” and “eligible” vs. “ineligible” distinction.

48. Support for Independent Living: The need for a sleep-in carer allows the claimant to live “as independently as possible in self-contained accommodation,” making the additional room a crucial component of their living arrangement (Para. 2).

Quotes from the Judgment

49. “The Claimant is a single woman now aged about 29 who suffers from learning disabilities to the extent that she requires a person to be providing care, support or supervision on a 24 hour basis. That means that, in order to enable her to live as independently as possible in self-contained accommodation, she requires someone to sleep in that accommodation overnight.” (Para. 2)

50. “The description which the parties give to a payment in the tenancy agreement cannot be conclusive as to whether it is to be viewed as ‘rent’ or as a ‘service charge’ for the purpose of regulation 10 and Schedule 1.” (Para. 24)

51. “The extra room therefore was used by an overnight supervisor who needed to be in the building. It therefore appeared to the tribunal that it was necessary accommodation to enable [the Claimant] to live independently.” (Para. 21)

52. “Evidence will be provided from PF staff that it has always been recognised that the tenancy agreement does not reflect the reality of the arrangement, and that [the Claimant] has always been the tenant of the entire property.” (Para. 19)

53. “I explained that [the Claimant’s] tenancy agreement was misleading in the use of the term communal area, which cannot exist in a property for one person. … We agreed that [the Claimant’s] tenancy was, and had always been, of the whole house, and was not limited to only part of the property.” (Para. 20-21)

54. “Accommodation with only one bedroom would have been unsuitable for the Claimant’s purposes. As Mr Commissioner Mesher concluded in para. 17 of the common Appendix to CIS/1459/1995, ‘the question of connection with the provision of adequate accommodation under paragraph 1(g) should not be confined to the character of the accommodation, but should take account of the personal needs of the residents.'” (Para. 33)

55. “Whilst that policy undoubtedly covers the actual cost of paying for the care provider, it does not seem to me that it covers, in the case where sleep-in support is required, the cost of additional accommodation necessary to provide that support.” (Para. 34)

56. This case highlights the judiciary’s willingness to look beyond the literal wording of a tenancy agreement to ascertain the true intent and reality of the living arrangement, particularly in cases involving vulnerable individuals with specific needs for independent living with support.